5.  The applicant was born in 1941 and lives in Istanbul.
6.  In 1995, a general civil disobedience movement, called the “Initiative for freedom of expression” (IFE) commenced following the trial of the famous writer, Yaşar Kemal, who was prosecuted for his article published in the German magazine “Der Spiegel”. One thousand and eighty intellectuals protested against Yaşar Kemal's prosecution by re-publishing his articles and other banned articles in a book entitled 'Freedom of Expression'. The aim of the IFE was the amendment of the provisions of the Turkish legislation concerning freedom of expression.
7.  The members of the IFE continued their campaign by gathering in front of the Istanbul State Security Court building once a month and distributing leaflets, which included shortened versions of previously banned articles.
8.  On 23 July 1999 the applicant distributed the leaflet entitled “Freedom of Thought - No. 38” in front of the Istanbul State Security Court Building. This leaflet was a reproduction of the leaflet entitled “Freedom of Thought - No. 9”, which contained statements made by Osman Murat Ülke, who is a conscientious objector. The same day, the applicant filed a complaint against himself with the Public Prosecutor attached to the Istanbul State Security Court and maintained that he should be prosecuted for re-publishing the leaflet entitled “Freedom of Thought-No. 9”, banned by the General Staff Military Court.
9.  On 5 October 1999 the military public prosecutor initiated criminal proceedings against the applicant in the General Staff Military Court, and charged him with seeking to dissuade persons from serving in the military contrary to Article 155 of the Turkish Criminal Code in conjunction with Article 58 of the Military Criminal Code.
10.  During a hearing held on 23 November 1999, the applicant refused to answer any questions posed by the military court as regards the merits of the case. He maintained that the trial of a civilian by a military court breached Article 6 of the Convention, which guaranteed the fairness of proceedings. He argued that the military court could not provide him with a fair trial by an independent court and that such a prosecution would be against the Constitution. He further stated that Article 155 of the Criminal Code, which makes it an offence to seek to dissuade persons from serving in the military, was contrary to Article 10 of the Convention. The applicant maintained that he should have been tried by an ordinary criminal court. In this respect, he alleged that by republishing a previously banned article, he had breached Article 162 of the Criminal Code which provides that re‑publication of banned materials is an independent felony and that its perpetrator is subject to the same punishment as the author of the impugned article.
11.  The applicant further put forward a plea of unconstitutionality, stating that Article 155 of the Turkish Criminal Code breached Articles 90 and 152 of the Constitution. The Military Court, considering that the applicant's submissions were unsubstantiated, refused his request.
12.  On 1 February 2000 the court recalled that Osman Murat Ülke had been convicted in 1997 for breach of Article 155 of the Criminal Code for holding a press conference at the Izmir War Resisters' Association. Accordingly it held that by re-publishing those statements, the applicant had acted with the intention to break the law. The court further quoted the following statements from the leaflet.
“Above all I am not a draft evader, but a conscientious objector. I intend neither to evade nor to accept conscription. I have no reason to evade conscription, because I am in favour of people using their right not to be conscripted without having to hide.
...
Even though I cannot be called a draft evader, I consider it meaningless to go of my own accord. On the contrary, here and now, I will burn this military pass against which my own will rebels. In addition, I will burn the notification paper and send back the rest of the documents to the state by mail. Perhaps they will need them. Also I will send back the money that was given to me by the Ankara Recruiting Office for transportation and food expenses. I am not a soldier and I will never be... But I want to stress that if I'm taken to the barracks by force, I will resist to the end and never perform military service.”
13.  The military court held that, pursuant to Article 13 of the Constitution, fundamental rights and freedoms may be restricted by law, in conformity with the latter and the spirit of the Constitution, with the aim of safeguarding the indivisible integrity of the state with its territory and nation, national sovereignty, the Republic, national security, public order, general peace, the public interest, public morals and public health. Moreover, pursuant to Article 10 § 2 of the Convention, the exercise of freedom of expression may be subjected to such formalities, conditions, restrictions or penalties as are described by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety.
14.  Consequently, the military court found the applicant guilty under Article 155 of the Criminal Code, in conjunction with Article 58 of the Military Criminal Code, for seeking to dissuade persons from serving in the military. It further sentenced him to two months' imprisonment and a fine.
15.  On 16 May 2000 the Military Court of Cassation, finding the reasoning of the first instance court in line with the domestic legislation, refused the applicant application for leave to appeal.
16.  On 21 July 2000 the applicant was informed about the final decision of the Military Court of Cassation by the demand sent by the Üsküdar Public Prosecutor's Office that the applicant surrender to serve his sentence.